Seeking Clarity on Indecency

Bristol, R.I., founded in 1620, claims the longest-running Fourth of July parade in America. This year, WPRI of Providence will again televise the parade, but the station knows that things happen when huge crowds gather in the sun and alcohol is involved.

In a move that's more and more common, WPRI will run the Independence Day event through a five-second delay. It's not a practice broadcasters are particularly happy about, but many say wild overreaching by the FCC and a climate of extreme sensitivity to indecency have made such steps necessary. And broadcasters think things may get worse for them before they get better, because Congress could pass the toughest new anti-indecency laws in years.

Instead of having to put the Fourth of July parade on delay, broadcasters say they'd prefer some bright-line rules from the FCC about what they can and cannot show.

"There is just enormous uncertainty among broadcasters on just what gets fined and what doesn't," said NAB spokesman Dennis Wharton.

Complaints from the public rose from 111 in 2000 to more than 1.4 million in 2004, many of them provoked by L. Brent Bozell's Parents Television Council, which did not respond to requests for comment. In addition, broadcasters are troubled by FCC actions such as its assessment of $1.18 million in fines for an episode of "Married By America." That includes fines of $7,000 for 169 Fox affiliates--even the many whose actual viewers did not make a single complaint to the stations or FCC.

Lawyers say that only a few dozen individuals may have generated the 159 complaints the commission says it received about "Married by America." Ten came from Belgrade, Mont., a town of 5,500 with no over-the-air reception of any Fox affiliate, according to broadcasters' filings.

"The fact that the commission would consider these complaints is a disturbing trend," wrote Jonathan Lichstein, attorney for Sunbelt Communications Co., which owns about 16 stations. "The commission has established a new and dangerous procedural standard... A licensee could be subject to forfeiture even if the licensee is not named in a complaint filed with the commission.

"Are we going to be penalized for other people's actions?" Lichstein asked later in an interview.

So far, the FCC has yet to collect the fines and broadcasters have grumbled about filing a big lawsuit to take a shot at the FCC's newfound bravado. But the ruling stands for now, as does a fine on NBC for the utterance of the f-word on a broadcast of the Golden Globe Awards in 2003.

In addition, critics of television programming are going after more than just f-words and brief nudity. PTC has launched complaints against "Friends," "Scrubs" and "The Simpsons." (The FCC denied the complaints.) About a third of all ABC affiliates skipped "Saving Private Ryan" out of fear the FCC would find it indecent. It didn't, but broadcasters point to the incident as a low point in self-censorship caused by a lack of clarity from the commission.

"Specificity and clarity [from the FCC] would make it easier," said Emmis TV President Randall Bongarten. "It is, of course, impossible because one must consider context and intent, and that inevitably involves judgment and opinion."

NO CHANGE AT THE TOP

Broadcasters think this chill may last. Kevin Martin, the new FCC Chairman, brings a record and reputation for toughness on indecency; Bozell gave him a ringing endorsement. On the Democratic side, Commissioner Michael Copps has criticized some FCC actions for not going far enough. In Congress, the House passed "The Janet Jackson Bill" by a huge margin and sent it to the Senate. The House bill would raise the maximum fine per incident from $32,500 to $500,000, and bring a license revocation hearing after three violations--what broadcasters call a "three strikes" law.

The chilled atmosphere "will continue for some time, especially if Congress approves an increase in the possible fine," said Lichstein. "If something is borderline, people are going to give it a second look."

FCC officials did not return phone calls seeking comment or have refused to speak on the indecency subject.

Some backlash has arisen against the anti-indecency juggernaut, not just among liberal groups and civil libertarians, but also on the right. A group of conservative and small-government groups have joined up with NBC and Fox parent News Corp. to create TV Watch, a coalition promising to fight back against "groups pushing regulators and lawmakers to reinforce their critique of television with the government's help," said TV Watch Executive Director Jim Dyke, a former communications director for the Republican National Committee.

Armed with polls he says show Americans overwhelmingly opposed to government interference in television viewing rights, Dyke said the new coalition seeks to put balance in a debate he said has been dominated by only one side. "Everything's on the table" as far as possible educational and outreach efforts, he said. Three prominent Republicans in Congress have thus far blessed the effort.

NAB, favoring self-regulation by broadcasters instead of a heavy government hand, has formed a committee on "responsible programming," co-chaired by Gary Chapman, CEO of LIN TV and David Kennedy of Susquehannah Radio, with an eye toward adoption of a code of conduct this summer. The cable industry has already announced an indecency outreach initiative it claims will cost $250 million.

Meanwhile, broadcasters grumble that with cable, satellite and the Internet providing far more troublesome fare, broadcasters are being singled out because they're an easy target, with old indecency rules being enforced as the rest of the world changes. "In any event, with so many media through which the consumer can receive entertainment and information, the government is engaged in an act of futility," said Bongarten, of Emmis. "Did we learn nothing from Prohibition?"

Television stations will face difficult if not impossible obstacles as they push toward full-power DTV and the end of analog broadcasts in February 2009 if they don’t get some flexibility in the rules of the final changeover, broadcasters told the FCC in August.

Despite pleadings from several members of Congress that the proposed broadcast indecency bill being considered would violate free speech rights, the House of Representatives overwhelmingly approved an election-year broadcast indecency bill that could impose fines of up to $500,000 for broadcasters that air "indecent" m